INTRODUCTION

 

 

 

SHARE EXCHANGE AND REORGANIZATION AGREEMENT, dated as of January 31, 2013 (the “Agreement”), among ANTRIABIO DELAWARE, INC., a Delaware corporation (“AntriaBio”); ANTRIABIO, INC., a Delaware corporation (“PublicCo”) and THE BENEFICIAL STOCKHOLDERS OF ANTRIABIO IDENTIFIED IN SCHEDULE A HERETO (the “AntriaBio Stockholders”).

PublicCo desires to acquire all of the issued and outstanding shares of AntriaBio capital stock (the “AntriaBio Capital Stock”) solely in exchange for an aggregate of 35,284,000 shares (the “Shares”) of authorized, but theretofore unissued, shares of common stock, par value $0.001 per share, of PublicCo (the “PublicCo Common Stock”).  The AntriaBio Stockholders desire to exchange all of their beneficially owned shares of AntriaBio Capital Stock solely for shares of PublicCo Common Stock in the amount set forth herein.

On or prior to the date hereof, the respective boards of directors or analogous governing body of each of PublicCo and AntriaBio have, and the AntriaBio Stockholders have, approved and adopted this Agreement and it is the intent of the parties hereto that the transactions contemplated hereby be structured so as to qualify as a tax-free exchange under Subchapter C of the Internal Revenue Code of 1986, as amended (the “Code”), and the provisions of this Agreement will be interpreted in a manner consistent with this intent.

NOW, THEREFORE, in consideration of the premises and mutual representations, warranties and covenants herein contained, the parties hereby agree as follows:

 

Section 1.01                      The Agreement.  The parties hereto hereby agree that, at the closing of the transactions contemplated hereby (the “Closing”), PublicCo shall acquire all of the issued and outstanding shares of AntriaBio Capital Stock and will assume any and all outstanding AntriBio Options, Warrants and Convertible Securities solely in exchange for an aggregate of 35,284,000 Shares of authorized, but theretofore unissued, shares of PublicCo Common Stock. The parties hereto agree that at the Closing, AntriaBio will become a wholly-owned subsidiary of PublicCo subject to the conditions and provisions of Section 1.07 hereof.

 

 

Section 1.02                      Exchange of Shares.

(a)           At the Closing, PublicCo will cause to be issued and held for delivery to the AntriaBio Stockholders or their designees, stock certificates representing in the aggregate the Shares, in exchange for all of the issued and outstanding shares of AntriaBio Capital Stock, which shares will be delivered to PublicCo at the Closing.

 

(b)           The shares of PublicCo Common Stock to be issued pursuant to paragraph (a) of this Section 1.02 will be authorized, but theretofore unissued shares of PublicCo Common Stock, and will be issued to the AntriaBio Stockholders or as directed thereby as set forth in Schedule 1.02(b) hereof.

(c)           All shares of PublicCo Common Stock to be issued hereunder shall be deemed “restricted securities” as defined in paragraph (a) of Rule 144 under the Securities Act of 1933, as amended (the “Securities Act”), and the AntriaBio Stockholders hereby represent that they are acquiring said shares for investment purposes only and without the intent to make a further distribution of such shares.  All shares of PublicCo Common Stock to be issued under the terms of this Agreement shall be issued pursuant to an exemption from the registration requirements of the Securities Act, under Section 4(2) of the Securities Act and the rules and regulations promulgated thereunder.  Certificates representing the shares of PublicCo Common Stock to be issued hereunder shall bear a restrictive legend in substantially the following form:

 

(c)           Tungsten 74, LLC, the majority stockholder of PublicCo (“Tungsten”), has agreed that, on the Closing Date, Tungsten shall deliver to PublicCo for cancellation the 19,890,000 shares of PublicCo Common Stock owned beneficially and of record thereby.

Section 1.07                      Approval by Board of Directors.  In anticipation of this Agreement, PublicCo has taken all necessary and requisite corporate and other action, including without limitation, actions of the Board of Directors in order to approve this Agreement and all transactions contemplated hereby and in connection herewith.

 

 

Section 2.01                      Representations and Warranties of PublicCo.  PublicCo hereby represents and warrants to, and agrees with, AntriaBio and the AntriaBio Stockholders as follows:

(a)           (i)           The PublicCo Common Stock has been registered under Section 12(g) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and PublicCo is subject to the periodic reporting requirements of Section 13 of the Exchange Act.  PublicCo has made available to AntriaBio and the AntriaBio Stockholders true, complete, and correct copies of all forms, reports, schedules, statements, and other documents required to be filed by it under the Exchange Act, as such documents have been amended since the time of the filing thereof (collectively, including all forms, reports, schedules, statements, exhibits, and other documents filed by PublicCo therewith, the “SEC Documents”). The SEC Documents, including, without

 

 

(ii)           Except as otherwise disclosed in the SEC Documents, PublicCo maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act; such controls and procedures are effective to ensure that:

(A)           all material information concerning PublicCo is made known on a timely basis to the individuals responsible for the preparation of PublicCo’s filings with the SEC and other public disclosure documents;

(B)           transactions are executed in accordance with management’s general or specific authorizations;

(C)           transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles and to maintain asset accountability;

(D)           access to assets is permitted only in accordance with management’s general or specific authorization; and

(E)           the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.

PublicCo has made available to AntriaBio and the AntriaBio Stockholders copies of, all written descriptions of, and all policies, manuals and other documents promulgating, such disclosure controls and procedures.  The books, records and accounts of PublicCo accurately and fairly reflect, in reasonable detail, the transactions in, and dispositions of, the assets of, and the results of operations of, PublicCo all to the extent required by generally accepted accounting principles.

(iii)           The Chief Executive Officer and the Chief Financial Officer of PublicCo has signed, and PublicCo has filed with or furnished to the SEC, as the case may be, all certifications required by Sections 302 and 906 of the Sarbanes-Oxley Act of 2002; such certifications contain no qualifications or exceptions to the matters certified therein and have not been modified or withdrawn; and neither PublicCo nor any of its officers has received notice from any governmental entity questioning or challenging the accuracy, completeness, form or manner of filing or submission of such certifications.

(iv)           PublicCo has heretofore made available to AntriaBio and the AntriaBio Stockholders complete and correct copies of all certifications filed with or furnished to the SEC, as the case may be, pursuant to Sections 302 and 906 of Sarbanes-Oxley Act of 2002 and hereby reaffirms, represents and warrants to AntriaBio and the AntriaBio Stockholders the matters and statements made in such certificates. 

 

 

(b)

At the date hereof and at the Closing Date:

 

(iv)           the PublicCo Common Stock is eligible for participation in The Depository Trust Company book entry system.

 

 

 

(d)           PublicCo has all requisite power and authority to execute, deliver, and perform this Agreement.  All necessary proceedings of PublicCo have been duly taken to authorize the execution, delivery, and performance of this Agreement thereby. This Agreement has been duly authorized, executed, and delivered by PublicCo, constitutes the legal, valid, and binding obligation of PublicCo, and is enforceable as to PublicCo in accordance with its terms.  Except as otherwise set forth in this Agreement, no consent, authorization, approval, order, license, certificate, or permit of or from, or declaration or filing with, any federal, state, local, or other governmental authority or any court or other tribunal is required by PublicCo for the execution, delivery, or performance of this Agreement thereby.  No consent, approval, authorization or order of, or qualification with, any court, government or governmental agency or body, domestic or foreign, having jurisdiction over PublicCo or over its properties or assets is required for the execution and delivery of this Agreement by PublicCo and the consummation by PublicCo of the transactions herein contemplated, except such as may be required under the Securities Act or under state or other securities or blue sky laws, all of which requirements have been, or in accordance therewith will be, satisfied in all material respects.  No consent of any party to any material contract, agreement, instrument, lease, license, arrangement, or understanding to which PublicCo is a party, or to which its or any of its respective businesses, properties, or assets are subject, is required for the execution, delivery, or performance of this Agreement by PublicCo; and the execution, delivery, and performance of this Agreement by PublicCo will not violate, result in a breach of, conflict with, or (with or without the giving of notice or the passage of time or both) entitle any party to terminate or call a default under, entitle any party to receive rights or privileges that such party was not entitled to receive immediately before this Agreement was executed under, or create any obligation on the part of PublicCo to which it was not subject immediately before this Agreement was executed under, any term of any such material contract, agreement, instrument, lease, license, arrangement, or understanding, or violate or result in a breach of any term of the certificate of incorporation or by-laws of PublicCo or (if the provisions of this Agreement are satisfied) violate, result in a breach of, or conflict with any law, rule, regulation, order, judgment, decree, injunction, or writ of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over PublicCo or over its properties or assets.

 (e)           There is not any pending or, to the best of PublicCo's knowledge, threatened, action, suit, claim or proceeding against PublicCo, or any of PublicCo’s current or past officers or any of the respective properties, assets or rights of PublicCo, before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over PublicCo or over PublicCo’s current or past officers or the properties of PublicCo, or otherwise that (i) is reasonably likely to result in any material adverse change in the respective business, prospects, financial condition or results of operations of PublicCo or might materially and adversely affect its properties, assets or rights taken as a whole, (ii) might prevent consummation of the transactions contemplated by this Agreement, or (iii) alleging violation of any Federal or state securities laws.

 

(f)           The authorized capital stock of PublicCo consists of 200,000,000 shares of PublicCo Common Stock, of which 24,606,000 shares of PublicCo Common Stock are outstanding, and 20,000,000 shares of “blank check” preferred stock, none of which is outstanding.  Each of such outstanding shares of PublicCo Common Stock is duly and validly authorized, validly issued, fully paid, and nonassessable, has not been issued and is not owned or held in violation of any preemptive or similar right of stockholders.  Except as disclosed in the SEC Documents, (i) there is no commitment, plan, or arrangement to issue, and no outstanding

 

 

(g)           Berman and Company, examined the financial statements of PublicCo, together with the related schedules and notes, for the for the period from July 26, 2010 (inception) through March 31, 2011, and for the year ended June 30, 2011, filed with the SEC as a part of the SEC Documents, are independent accountants within the meaning of the Securities Act, the Exchange Act, and the rules and regulations promulgated thereunder; and the audited financial statements of PublicCo, together with the related schedules and notes, and the unaudited financial information, forming part of the SEC Documents, fairly present and will fairly present the financial position and the results of operations of PublicCo at the respective dates and for the respective periods to which they apply; and all audited financial statements of PublicCo, together with the related schedules and notes, and the unaudited financial information, filed with the SEC as part of the SEC Documents, complied and will comply as to form in all material respects with applicable accounting requirements and with the rules and regulations of the SEC with respect hereto when filed, have been and will be prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved except as may be otherwise stated therein (except as may be indicated in the notes thereto or as permitted by the rules and regulations of the United States Securities and Exchange Commission the (“SEC”)) and fairly present and will fairly present, subject in the case of the unaudited financial statements, to customary year end audit adjustments, the financial position of PublicCo as at the dates thereof and the results of its operations and cash flows.  The procedures pursuant to which the aforementioned financial statements have been audited are compliant with generally accepted auditing standards. The selected and summary financial and statistical data included in the SEC Documents present and will present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein.  No other financial statements or schedules are required to be included in the SEC Documents.   The financial statements referred to in this Section 3.01(g) contain all certifications and statements required under the SEC’s Order, dated June 27, 2002, pursuant to Section 21(a)(1) of the Exchange Act (File No. 4-460), Rule 13a-14 or 15d-14 under the Exchange Act, or 18 U.S.C. Section 1350 (Sections 302 and 906 of the Sarbanes-Oxley Act of 2002) with respect to the report relating thereto.  Since September 30, 2012 (the “PublicCo Financial Statement Date”):

 

 

(i)           There has at no time been a material adverse change in the financial condition, results of operations, businesses, properties, assets, liabilities, or future prospects of PublicCo.

(ii)           PublicCo has not authorized, declared, paid, or effected any dividend or liquidating or other distribution in respect of its capital stock or any direct or indirect redemption, purchase, or other acquisition of any stock of PublicCo.

(iii)           Except as set forth in the SEC Documents, the operations and businesses of PublicCo have been conducted in all respects only in the ordinary course.

Other than a “going concern” qualification in the report of the auditors with respect to the financial statements of PublicCo, there is no fact known to PublicCo which materially adversely affects or in the future (as far as PublicCo can reasonably foresee) may materially adversely affect the financial condition, results of operations, businesses, properties, assets, liabilities, or future prospects of PublicCo; provided, however, that PublicCo does not express any opinion as to political or economic matters of general applicability.  PublicCo has made known, or caused to be made known, to the accountants or auditors who have prepared, reviewed, or audited the aforementioned consolidated financial statements all material facts and circumstances which could affect the preparation, presentation, accuracy, or completeness thereof.

(h)           Subsequent to the respective dates as of which information is given in the SEC Documents, there has not been (i) any material adverse change in the business, prospects, financial condition or results of operations of PublicCo, (ii) any transaction committed to or consummated that is material to PublicCo, (iii) any obligation, direct or contingent, that is material to PublicCo incurred by PublicCo, except such obligations as have been incurred in the ordinary course of business, (iv) any change in the capital stock or outstanding indebtedness of PublicCo or any subsidiary thereof that is material to PublicCo, (v) any dividend or distribution of any kind declared, paid, or made on the capital stock of PublicCo, or (vi) any loss or damage (whether or not insured) to the property of PublicCo which has a material adverse effect on the business, prospects, condition (financial or otherwise), or results of operations thereof.

(i)           At the Closing, PublicCo shall have no properties or assets other than immaterial intangible assets (such as the web site of PublicCo) and PublicCo shall be free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest. At the Closing, PublicCo shall be party to no agreements except for this Agreement and the Securities Purchase Agreement, dated as of August 30, 2012, among Tungsten and each of the holders of PublicCo Common Stock named therein, each of which shall be a legal, valid and binding agreement, enforceable against PublicCo in accordance with its respective terms.

(j)           PublicCo has and at the Closing shall have no liability of any nature, accrued or contingent, including, without limitation, liabilities for federal, state, local, or foreign taxes and penalties, interest, and additions to tax (“Taxes”), and liabilities to customers or suppliers.  Without limiting the generality of the foregoing, the amounts set up as provisions for Taxes, if any, in the financial statements of PublicCo (the “Last PublicCo Financial Statements”) at Last

 

(k)           Except as disclosed in the SEC Documents, PublicCo does not have any insurance; PublicCo has at no time been refused any insurance coverage sought or applied for.

(l)           (i)           No labor disturbance by the employees of PublicCo exists or, to the best of PublicCo’s knowledge, is imminent.  PublicCo is not aware of any existing or imminent labor disturbance by the employees of any principal suppliers or customers of PublicCo that might be expected to result in any material adverse change in the business, prospects, financial condition, or results of operations of PublicCo.  No collective bargaining agreement exists with any of PublicCo’s employees and, to the best of PublicCo's knowledge, no such agreement is imminent.

(ii)           PublicCo does not have, or contribute to, and has never maintained or contributed to, any pension, profit-sharing, option, other incentive plan, or any other type of Employee Benefit Plan (as defined in Section 3(3) of ERISA) or Pension Plan (as defined in ERISA) and PublicCo does not have any obligation to or customary arrangement with employees for bonuses, incentive compensation, vacations, severance pay, sick pay, sick leave, insurance, service award, relocation, disability, tuition refund, or other benefits, whether oral or written.

 

(m)           The  Company has no, and has no rights to use, patents, patent rights, inventions, trade secrets, know-how, trademarks, service marks, trade names, logos, or copyrights. PublicCo has not received any notice of, or has knowledge of, any infringement of or conflict with asserted rights of PublicCo by others with respect to any patents, patent rights, inventions, trade secrets, know-how, trademarks, service marks, trade names, logos, or copyrights; and PublicCo has not received any notice of, or has no knowledge of, any infringement of, or conflict with, asserted rights of others with respect to any patents, patent rights, inventions, trade secrets, know-how, trademarks, service marks, trade names, logos, or copyrights described or referred to in the SEC Documents as owned by or used by it or which, individually or in the aggregate, in the event of an

 

(n)           PublicCo has been advised concerning the Investment Company Act of 1940, as amended (the “Investment Company Act”), and the rules and regulations thereunder, and has in the past conducted its affairs in such a manner as to ensure that it is not and will not become an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act and such rules and regulations.

(o)           (i)           PublicCo has not, and no person or entity acting on behalf or at the request of PublicCo has, at any time during the last five years (i) made any unlawful contribution to any candidate for foreign office or failed to disclose fully any contribution in violation of law, or (ii) made any payment to any federal or state governmental officer or official, or other person charged with similar public or quasi-public duties, other than payments required or permitted by the laws of the United States or any other applicable jurisdiction.

(ii)           To the best knowledge of PublicCo, no director, officer, agent, employee, or other person associated with, or acting on behalf of, PublicCo, has, directly or indirectly: used any corporate funds for unlawful contributions, gifts, entertainment, or other unlawful expenses relating to political activity; made any unlawful payment to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns from corporate funds; violated any provision of the Foreign Corrupt Practices Act of 1977, as amended; or made any bribe, rebate, payoff, influence payment, kickback, or other unlawful payment.  PublicCo's internal accounting controls and procedures are sufficient to cause PublicCo to comply in all respects with the Foreign Corrupt Practices Act of 1977, as amended.

 

(iii)           Neither PublicCo, nor any officer, director or affiliate of PublicCo, has been, within the five years ending on the Closing Date, a party to any bankruptcy petition against such person or against any business of which such person was affiliated; convicted in a criminal proceeding or subject to a pending criminal proceeding (excluding traffic violations and other minor offenses); subject to any order, judgment or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining, barring, suspending or otherwise limiting their involvement in any type of business, securities or banking activities; or found by a court of competent jurisdiction in a civil action, by the SEC or the Commodity Futures Trading Commission to have violated a federal or state securities or commodities law, and the judgment has not been reversed, suspended or vacated.

(p)           PublicCo has not, and no person acting on behalf thereof, has taken or will take, directly or indirectly, any action designed to, or that might reasonably be expected to cause or result in, stabilization in violation of law, or manipulation, of the price of the PublicCo Common Stock to facilitate the sale or resale of the Shares.

(q)           Except as set forth in the SEC Documents, (i) PublicCo is in compliance in all material respects with all rules, laws and regulations relating to the use, treatment, storage and disposal of toxic substances and protection of health or the environment (“Environmental Laws”) that are applicable to its business, (ii) PublicCo has not received notice from any governmental

 

(r)           There are no outstanding loans, advances or guarantees of indebtedness by PublicCo to, or for the benefit of, any of the officers, directors, or director-nominees of PublicCo or any of the members of the families of any of them, except as disclosed in the SEC Documents.

(s)           PublicCo has not incurred any liability, direct or indirect, for finders' or similar fees on behalf of or payable by PublicCo or AntriaBio and the AntriaBio Stockholders in connection with the transactions contemplated hereby or any other transaction involving PublicCo, AntriaBio or the AntriaBio Stockholders.

 

(t)           No stockholder of PublicCo has any right to request or require PublicCo to register the sale of any shares owned by such stockholder under the Securities Act on any registration statement.

 

(u)           PublicCo is in compliance with, and is not in violation of, applicable federal, state, local or foreign statutes, laws and regulations (including without limitation, any applicable building, zoning or other law, ordinance or regulation) affecting its properties or the operation of its business, including, without limitation, Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated pursuant thereto or thereunder.  PublicCo is not subject to any order, decree, judgment or other sanction of any court, administrative agency or other tribunal.

 

(v)           PublicCo is not party to any contract, agreement or arrangement other than this Agreement and as otherwise disclosed in the SEC Documents.

Section 2.02                      Representations and Warranties of AntriaBio.  Except as set forth in the letter, of even date herewith (the “AntriaBio Disclosure Letter”), from AntriaBio to PublicCo, which AntriaBio Disclosure Letter and the exceptions contained therein shall be deemed to be part of the representations and warranties made in this Section 2.02 and which AntriaBio Disclosure Letter has been delivered by AntriaBio to PublicCo simultaneously with the execution and delivery hereof, AntriaBio hereby represents and warrants to PublicCo that the statements contained in this Section 2.02 are true and correct.  The AntriaBio Disclosure Letter shall be arranged and labeled so as to correspond to the numbered and lettered subsections contained in this Section 2.02.

(a)           AntriaBio has no subsidiaries or affiliated corporation or owns any interest in any other enterprise (whether or not such enterprise is a corporation).  AntriaBio has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full power and authority (corporate and other) to own, lease and operate its respective properties and conduct its respective business as conducted on the date hereof; 

 

 

(b)           AntriaBio has all requisite power and authority to execute, deliver, and perform this Agreement.  All necessary proceedings of AntriaBio have been duly taken to authorize the execution, delivery, and performance of this Agreement thereby. This Agreement has been duly authorized, executed, and delivered by AntriaBio, constitutes the legal, valid, and binding obligation of AntriaBio, and is enforceable as to AntriaBio in accordance with its terms.  Except as otherwise set forth in this Agreement, no consent, authorization, approval, order, license, certificate, or permit of or from, or declaration or filing with, any federal, state, local, or other governmental authority or any court or other tribunal is required by AntriaBio for the execution, delivery, or performance of this Agreement thereby.  No consent, approval, authorization or order of, or qualification with, any court, government or governmental agency or body, domestic or foreign, having jurisdiction over AntriaBio or over its properties or assets is required for the execution and delivery of this Agreement by AntriaBio and the consummation by AntriaBio of the transactions herein contemplated, except such as may be required under the Securities Act or under state or other securities or blue sky laws.  No consent of any party to any material contract, agreement, instrument, lease, license, arrangement, or understanding to which AntriaBio is a party, or to which its or any of its respective businesses, properties, or assets are subject, is required for the execution, delivery, or performance of this Agreement by AntriaBio; and the execution, delivery, and performance of this Agreement by AntriaBio will not violate, result in a breach of, conflict with, or (with or without the giving of notice or the passage of time or both) entitle any party to terminate or call a default under, entitle any party to receive rights or privileges that such party was not entitled to receive immediately before this Agreement was executed under, or create any obligation on the part of AntriaBio to which it was not subject immediately before this Agreement was executed under, any term of any such material contract, agreement, instrument, lease, license, arrangement, or understanding, or violate or result in a breach of any

 

(c)           There is not any pending or, to the best of AntriaBio's knowledge, threatened, action, suit, claim or proceeding against AntriaBio, or any of AntriaBio’s current or past officers or any of the respective properties, assets or rights of AntriaBio, before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over AntriaBio or over AntriaBio’s current or past officers or the properties of AntriaBio, or otherwise that (i) is reasonably likely to result in any material adverse change in the respective business, prospects, financial condition or results of operations of AntriaBio or might materially and adversely affect its properties, assets or rights taken as a whole, (ii) might prevent consummation of the transactions contemplated by this Agreement, or (iii) alleging violation of any Federal or state securities laws.

 

(d)           The authorized capital stock of AntriaBio consists of 90,000,000 shares of common stock, par value $ 0.00001 per share, of which 35,284,000 shares of AntriaBio Common Stock are outstanding, and 10,000,000 shares of “blank check” preferred stock, none of which is outstanding.  Each of such outstanding shares of AntriaBio Common Stock is duly and validly authorized, validly issued, fully paid, and nonassessable, has not been issued and is not owned or held in violation of any preemptive or similar right of stockholders.  Except as disclosed in the AntriaBio Disclosure Letter, (i) there is no commitment, plan, or arrangement to issue, and no outstanding option, warrant, or other right calling for the issuance of, any share of capital stock of, or any security or other instrument convertible into, exercisable for, or exchangeable for capital stock of, AntriaBio, and (ii) there is outstanding no security or other instrument convertible into or exchangeable for capital stock of AntriaBio.  When delivered by AntriaBio in accordance with the terms of this Agreement, the shares of AntriaBio Capital Stock will be duly and validly issued and fully paid and nonassessable, and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest of any kind; and no preemptive or similar right, co-sale right, registration right, right of first refusal or other similar right of stockholders exists with respect to any of such shares of AntriaBio Capital Stock or the issuance and sale thereof other than those that have been expressly waived prior to the date hereof and those that will automatically expire upon the execution hereof.  No further approval or authorization of any stockholder, the Board of Directors of AntriaBio or others is required for the issuance and sale or transfer of the shares of AntriaBio Capital Stock to be delivered pursuant hereto, except as may be required under the Securities Act, the rules and regulations promulgated thereunder or under state or other securities or blue sky laws.  AntriaBio has no stock option, stock bonus and other stock plans or arrangements.

 

(e)           To the best of AntriaBio’s knowledge, the properties and assets (including Intangibles) owned by AntriaBio (other than those leased or licensed by AntriaBio to a third party) or leased or licensed by AntriaBio from a third party constitute all such properties and assets which are necessary to the business of AntriaBio as presently conducted or as they contemplate conducting.

 

(f)           AntriaBio has made available to PublicCo the certificate of incorporation and by-laws of AntriaBio (or, in each case, the comparable charter documents, if any, under applicable

 

(g)           AntriaBio has been advised concerning the Investment Company Act of 1940, as amended (the “Investment Company Act”), and the rules and regulations thereunder, and has in the past conducted its affairs in such a manner as to ensure that it is not and will not become an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act and such rules and regulations.

(h)           (i)           AntriaBio has not, and no person or entity acting on behalf or at the request of AntriaBio has, at any time during the last five years (i) made any unlawful contribution to any candidate for foreign office or failed to disclose fully any contribution in violation of law, or (ii) made any payment to any federal or state governmental officer or official, or other person charged with similar public or quasi-public duties, other than payments required or permitted by the laws of the United States or any other applicable jurisdiction.

(ii)           To the best knowledge of AntriaBio, no director, officer, agent, employee, or other person associated with, or acting on behalf of, AntriaBio, has, directly or indirectly used any corporate funds for unlawful contributions, gifts, entertainment, or other unlawful expenses relating to political activity; made any unlawful payment to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns from corporate funds; violated any provision of the Foreign Corrupt Practices Act of 1977, as amended; or made any bribe, rebate, payoff, influence payment, kickback, or other unlawful payment.  AntriaBio's internal accounting controls and procedures are sufficient to cause AntriaBio to comply in all respects with the Foreign Corrupt Practices Act of 1977, as amended.

(iii)           With the exception of Mr. Steve Howe’s association with the PR Pharmaceuticals Inc.’s bankruptcy, neither AntriaBio, nor any officer, director or affiliate of AntriaBio, has been, within the ten years ending on the date of this Agreement, a party to any bankruptcy petition against such person or against any business of which such person was affiliated; convicted in a criminal proceeding or subject to a pending criminal proceeding (excluding traffic violations and other minor offenses); subject to any order, judgment or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining, barring, suspending or otherwise limiting their involvement in any type of business, securities or banking activities; or found by a court of competent jurisdiction in a civil action, by the Securities and Exchange Commission or the Commodity Futures Trading Commission to have violated a federal or state securities or commodities law, and the judgment has not been reversed, suspended or vacated.

(i)           AntriaBio has not, and no person acting on behalf thereof, has taken or will directly or indirectly, any action designed to, or that might reasonably be expected to cause or result in, stabilization in violation of law, or manipulation, of the price of the AntriaBio Capital Stock to facilitate the sale or resale of the Shares.

(j)           AntriaBio has not incurred any liability, direct or indirect, for finders' or similar fees on behalf of or payable by AntriaBio or AntriaBio and the AntriaBio Stockholders in

 

(k)           No stockholder of AntriaBio has any right to request or require AntriaBio to register the sale of any shares owned by such stockholder under the Securities Act on any registration statement.

(l)           AntriaBio is in compliance with, and is not in violation of, applicable federal, state, local or foreign statutes, laws and regulations (including without limitation, any applicable building, zoning or other law, ordinance or regulation) affecting its properties or the operation of its business, the violation of which would have a material adverse effect on the business, prospects, financial condition, or results of operations of AntriaBio.  AntriaBio is not subject to any order, decree, judgment or other sanction of any court, administrative agency or other tribunal.

 

(m)            AntriaBio has provided to PublicCo true and correct copies of the following:  audited balance sheets of AntriaBio as of December 31, 2011; unaudited balance sheets of AntriaBio as of September 30, 2012; audited statements of income, statements of stockholders’ equity, and statements of cash flows of AntriaBio for the year ended December 31, 2011; and the unaudited statements of income, statements of stockholders’ equity, and statements of cash flows of AntriaBio for the nine months ended September 30, 2012.  To the knowledge of AntriaBio, each such balance sheet presents fairly the financial condition, assets, liabilities, and stockholders’ equity of AntriaBio as of its respective date; each such statement of income and statement of stockholders’ equity presents fairly the results of operations of AntriaBio for the period indicated; and each such statement of cash flows fairly represents the financial condition of AntriaBio in a material respects.

 

 

(a)           To the knowledge of the AntriaBio Stockholders, the representations and warranties of AntriaBio set forth in Section 2.02 hereof are true and correct in all material respects.  Nothing has come to the attention of the AntriaBio Stockholders that would lead the AntriaBio Stockholders to believe that any representation or warranty of AntriaBio set forth on Section 2.02 hereof is untrue or incorrect in any material respect.

 

(b)           AntriaBio and the AntriaBio Stockholders have each approved this Agreement and duly authorized the execution and delivery hereof.  The AntriaBio Stockholders have full power and authority under the laws of the jurisdictions of residence thereof to execute, deliver, and perform this Agreement and the transactions contemplated hereby and in connection herewith. The AntriaBio Stockholders have reached the age of majority under applicable law.

 

(c)           The AntriaBio Stockholders own beneficially all of the shares of AntriaBio Capital Stock.  The AntriaBio Stockholders have full power and authority to transfer such shares of AntriaBio Capital Stock to PublicCo under, pursuant to, and in accordance with, this Agreement, and such shares are free and clear of any liens, charges, mortgages, pledges or encumbrances and such shares are not subject to any claims as to the ownership thereof, or any rights, powers or

 

 

(d)           (i)           The AntriaBio Stockholders represent that they are acquiring the shares of PublicCo Common Stock to be issued pursuant to Section 1.02(a) hereof for their own accounts and for investment only and not with a view to distribution or resale thereof within the meaning of such phrase as defined under the Securities Act.  The AntriaBio Stockholders shall not dispose of any part or all of such shares of PublicCo Common Stock in violation of the provisions of the Securities Act and the rules and regulations promulgated under the Securities Act by the United States Securities and Exchange Commission (the “SEC”) and all applicable provisions of state securities laws and regulations.

 

(ii)           The certificate or certificates representing the shares of PublicCo Common Stock shall bear a legend in substantially the form set forth in Section 1.02(c) hereof.

 

(iii)           The AntriaBio Stockholders acknowledge being informed that the shares of PublicCo Common Stock to be issued pursuant to Section 1.02(a) hereof shall be unregistered, shall be “restricted securities” as defined in paragraph (a) of Rule 144 under the Securities Act, and must be held indefinitely unless (a) they are subsequently registered under the Securities Act, or (b) an exemption from such registration is available.  The AntriaBio Stockholders further acknowledge that PublicCo does not have an obligation to currently register such securities for the account of AntriaBio Stockholders.

 

(iv)           The AntriaBio Stockholders acknowledge that they have been afforded access to all material information which they have requested relevant to their decision to acquire the shares of PublicCo Common Stock and to ask questions of PublicCo’s management and that, except as set forth herein, neither PublicCo nor anyone acting on behalf of PublicCo has made any representations or warranties to the AntriaBio Stockholders which have induced, persuaded, or stimulated the AntriaBio Stockholders to acquire such shares of PublicCo Common Stock.

 

 

Section 3.01                      Vintage Filings Expenses.  PublicCo’s management as of September 2012, shall have paid the outstanding balance owed by PublicCo to Vintage Filings for XBRL services provided to PublicCo prior to September 2012.

 

 

 

Section 4.01                      Expenses.  Whether or not the transactions contemplated in this Agreement are consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby, will be paid by the party incurring such expense or as otherwise agreed to herein.

Section 4.02                      Necessary Actions.  Subject to the terms and conditions herein provided, each of the parties hereto agrees to use all reasonable efforts to take, or cause to be taken, all action and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement.  In the event at any time after the Closing, any further action is necessary or desirable to carry out the purposes of this Agreement, the proper executive officers and/or directors of PublicCo or AntriaBio, as the case may be, or the relevant AntriaBio Stockholders or AntriaBio Stockholders will take all such necessary action.

Section 4.03                      Extension of Time; Waivers.  At any time prior to the Closing Date:

(a)           PublicCo may waive any inaccuracies in the representations and warranties of AntriaBio or any AntriaBio Stockholders or AntriaBio Stockholders, or contained herein or in any document delivered pursuant hereto by AntriaBio or any AntriaBio Stockholders or AntriaBio Stockholders, and (iii) waive compliance with any of the agreements or conditions contained herein to be performed by AntriaBio or any AntriaBio Stockholders or AntriaBio Stockholders.  Any agreement on the part of PublicCo to any such extension or waiver will be valid only if set forth in an instrument, in writing, signed on behalf of PublicCo.
 

Section 4.04                      Notices.  Any notice or other communication required or permitted to be given hereunder shall be in writing and shall be mailed by certified mail, return receipt requested or by the most nearly comparable method if mailed from or to a location outside of the United States or by Federal Express, Express Mail, or similar overnight delivery or courier service or delivered (in person or by telecopy, telex, or similar telecommunications equipment) against receipt to the party to which it is to be given at the address of such party set forth in the introductory paragraph to this Agreement (or to such other address as the party shall have furnished in writing in accordance with the provisions of this Section 4.04.  Any notice to PublicCo or to AntriaBio shall be addressed to the attention of the Corporate Secretary. Any notice or other communication given by certified mail (or by such comparable method) shall be deemed given at the time of certification thereof (or comparable act), except for a notice changing a party's address which will be deemed given at the time of receipt thereof.  Any notice given by other means permitted by this Section 4.04 shall be deemed given at the time of receipt thereof.

 

 

 

Section 4.05                      Parties in Interest.  This Agreement will inure to the benefit of and be binding upon the parties hereto and the respective successors and assigns.  Nothing in this Agreement is intended to confer, expressly or by implication, upon any other person any rights or remedies under or by reason of this Agreement.

Section 4.06                      Counterparts.  This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all together will constitute one document.  The delivery by facsimile or .pdf of an executed counterpart of this Agreement will be deemed to be an original and will have the full force and effect of an original executed copy.

Section 4.07                      Severability.  The provisions of this Agreement will be deemed severable and the invalidity or unenforceability of any provision hereof will not affect the validity or enforceability of any of the other provisions hereof.  If any provisions of this Agreement, or the application thereof to any person or any circumstance, is illegal, invalid or unenforceable, (a) a suitable and equitable provision will be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision, and (b) the remainder of this Agreement and the application of such provision to other persons or circumstances will not be affected by such invalidity or unenforceability, nor will such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.

Section 4.08                      Headings.  The Article and Section headings are provided herein for convenience of reference only and do not constitute a part of this Agreement and will not be deemed to limit or otherwise affect any of the provisions hereof.

 

Section 4.09                      Governing Law.

 

(b)           EACH OF THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF THE FEDERAL COURTS SITTING IN THE STATE OF NEW YORK IN ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT.  EACH OF THE PARTIES AGREES THAT ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE LITIGATED EXCLUSIVELY IN ANY SUCH STATE OR, TO THE EXTENT PERMITTED BY LAW, FEDERAL COURT THAT SITS IN THE STATE OF NEW YORK, AND ACCORDINGLY, EACH PARTY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.  EACH PARTY FURTHER IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 4.04.  NOTHING IN THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS

 

AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.

(c)           EACH PARTY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH OF THE PARTIES (1) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (2) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 4.09(c).

Section 4.10                      Survival of Representations and Warranties.  All terms, conditions, representations and warranties set forth in this Agreement or in any instrument, certificate, opinion, or other writing providing for in it, will survive the Closing and the delivery of the shares of PublicCo Common Stock to be issued hereunder at the Closing for a period of one year after Closing, regardless of any investigation made by or on behalf of any of the parties hereto.

Section 4.11                      Assignability.  This Agreement will not be assignable by operation of law or otherwise and any attempted assignment of this Agreement in violation of this subsection will be void ab initio.

Section 4.12                      Amendment.  This Agreement may only be amended or modified with the approval of the AntriaBio Stockholders and the boards of directors of each of PublicCo and AntriaBio at any time.  This Agreement may not be amended except by an instrument, in writing, signed on behalf of each of the parties hereto.

 

Section 4.13                      Extended Meanings. In this Agreement words importing the singular number include the plural and vice versa; words importing the masculine gender include the feminine and neuter genders. The word “person” includes an individual, body corporate, partnership, trustee or trust or unincorporated association, executor, administrator or legal representative.

Section 4.14                      Entire Agreement.  Except as otherwise expressly provided herein, this Agreement sets forth the entire understanding of the parties with respect to the subject matter hereof, and supersedes all existing agreements among them concerning such subject matter.

 

 

 

 

 

 

	ANTRIABIO, INC.
	By:	/s/ Nickolay Kukekov
		Name:  Nickolay Kukekov Title:    Chief Executive Officer

 

 

 

 

 

 

 

Shareholder Name Address

EU One Group, LLC 36, boulevard des Moulins MC 98000, Monaco

Sankaram Mantripragada 999 18th Street, Suite 3000 Denver, CO 80202

Konus Advisors, LLC 890 Santa Cruz Avenue Menlo Park, CA 94025

Theodore Kalem 620 W 42nd Street, Apt 49A New York, NY 10036

Nickolay Kukekov  305 W 50th Street, Apt 25A New York, NY 10017

Boris Goldstein

Shareholder Name	Number of Shares in AntriaBio	Number of Shares in PublicCo (Post-Closing)
EU One Group, LLC	20,000,000	20,000,000
Sankaram Mantripragada	6,000,000	6,000,000
Konus Advisors, LLC	4,000,000	4,000,000
Theodore Kalem	2,392,000	2,392,000
Nickolay Kukekov	2,392,000	2,392,000
Boris Goldstein	500,000	500,000